Appeal No EAT/1339/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 March 2001

Before
MR RECORDER LANGSTAFF QC
MR D A C LAMBERT
MR J C SHRIGLEY

1) THE KERRYGOLD COMPANY LTD 2) "X"	APPELLANT

“Y”	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MRS ISABEL HANCOCK
Solicitor
Messrs Knight & Sons
Solicitors
The Brampton
Newcastle-Under-Lyme
Staffordshire
ST5 OQW	

MR RECORDER LANGSTAFF QC

1.	The Appellant seeks permission to appeal on three grounds against a decision of the Employment Tribunal at Shrewsbury, Extended Reasons for which were delivered on 14 September 2000.  That Tribunal upheld the employee’s complaint that there had been sexual discrimination against her by “X” and by the Appellant Company that consisted of three separate incidents in which she was touched inappropriately and indecently.

2.	Secondly, the Tribunal upheld her complaint of discrimination against her on the grounds of sex arising out of the manner in which her grievance about the touchings, the sexual harassment was dealt with.  Thirdly, it held that there had been constructive unfair dismissal against the Appellant.

3.	We propose to give permission to appeal on the last two of those findings, but not against the first.  Because we are dismissing the Appellant’s appeal against the finding of sexual discrimination in respect of the touching incidents we shall give full reasons.  The facts are that the employee who had worked for several years for the Appellant complained that on three occasions, the first in May 1999, the second in June or July 1999 and the third in August 1999,  her immediate line manager had in the absence of others touched her inappropriately and indecently.

4.	In respect of that the Employment Tribunal had before them the evidence of both the employee and of the man “X” who was accused of assaulting her.  She claimed the incidents occurred.  He denied it as he has always done.  The issue is thus one of credibility.  Where there is an issue of credibility, it is for the Tribunal which sees and hears the witnesses to decide which witness they accept and which they do not and if they accept the witness, to what extent they should do so.  They found that “X” was to a degree a credible witness but that his evidence was inconsistent in some respects.  They were of the conclusion that those inconsistencies entitled them to infer that the conduct complained about actually took place.  By contrast, they say, we found the Applicant to be a credible witness.

5.	There are four specific matters to which they draw attention in explaining in part the reason why they preferred one witness to another but they had on page 9 as part of paragraph 29 this:

“Therefore, on this issue we prefer the evidence of the applicant.  This was supported by our observation of the applicant as a witness, and her reaction as the whole case had developed in the Summer and Autumn 1999.”

In that brief passage they clearly take into account the way in which she as a witness struck them compared to the way which he as a witness struck them.

6.	The only way in which the finding that each of the incidents had taken place could be attacked is if we were to be persuaded that there was an arguable case that the Tribunal had reached a decision which was perverse.  Mrs Hancock, who appeared at the Tribunal and who undoubtedly would have put the points she makes to us with the same force to the Employment Tribunal had three principal reasons for suggesting that the decision was perverse.

7.	 The first of those was that it was some months before the employee complained of the behaviour of her manager towards her.  The last of the three incidents occurred in August.  She did not complain until 30 December.  Secondly, she insisted on returning to work not for the company as a whole, but in the very department in which her molester was the manager.  This, Mrs Hancock urged was conduct which was so completely inconsistent with her complaint that any reasonable Tribunal must have dismissed her complaint.  Thirdly, she relied upon the failure of the employee to be able to give details of the incidents particularly in respect of the dates upon which they occurred.

8.	Although these are powerful points they are it seems to us powerful points in respect of fact.  The overall conclusion of fact it seems to us was one to which any Tribunal is entitled to come to where they have two rival accounts.  They do not have to choose between the accounts.  They could have resolved the matter on the burden of proof.  But they said, and we do not think that there is any basis for suggesting they were not entitled to, that they thought the Applicant’s evidence carried more conviction than did the evidence of the male Respondent.

9.	Accordingly, although we acknowledge the force of the points that Mrs Hancock makes, this is a question of fact, a question of credibility and not one with which we are entitled to interfere.

10.	So far as the other two matters are concerned, first of all dealing with the question of alleged constructive dismissal, we think here there are at least two bases upon which an Appeal may be arguable.  First, the Employment Tribunal appear to have regarded the question whether the Employee had suffered any sexual assault as determinative of the question whether there had been a breach of the contract of employment against her by her employer.  This seems to us to raise difficult questions to which the answer is not at all obvious as to whether or not an employer whose liability is vicarious only may be said to be in repudiatory breach of its direct obligations to an employee under a contract of employment.

11.	Secondly, even if an employer in such circumstances could be said to be in breach of those obligations the question here is whether or not the Tribunal ought to have found that the employee had affirmed the contract.  The latest incident of assault upon her was August.  She did not complain until December but that was after she had specifically sought to return to work.  Thirdly, the reason that she gave which appears to be accepted by the Tribunal for her leaving work was not directly the breach of her employer or her fellow employee toward her but rather her feeling of embarrassment at returning to work in a situation where she had made a complaint against him.

12.	We think it arguable that this reveals no breach of contract.  We say nothing about the force of those points.  As to the question the second of the two points for which we give permission (that of the finding that there was discrimination on the ground of sex in respect of the handling of the grievance procedure) we think it is arguable that there is no jurisdiction to consider a complaint of sexual discrimination under Section 6 of the Sex Discrimination Act 1975 where the employee is not in employment at the time that the acts complained of take place.  This is not a claim for victimisation to which different rules apply see Coote v Granada Holdings.  This is a case in which the employee ceased to be an employee upon 6 January that being the date alleged by her in IT1 and accepted by the Respondent in their IT3.  Accordingly the only link between employment and the act upon which this part of her claim is founded is the fact that the complaint procedure, the grievance procedure, began before she left employment.

12.	We think that those two issues should take half a day.  Because of the potential difficulty of the first of them we think there should be skeleton arguments dealing with those two issues no less than fourteen days before the hearing.  Any authorities to be relied on to be copied and provided no less than seven days before the hearing – Category B.

13.	Finally, the Appellant has sought a restricted reporting order.  Rule 23 of the Tribunal Rules provides by sub rule 5 that this Tribunal shall not make a restricted reporting order unless it has given each party to the proceedings an opportunity to advance oral argument at a hearing if they so wish.  We cannot therefore make such an order today in respect of the hearing which is to take place at some future date because this Preliminary Hearing is of necessity Ex Parte.  

14.	However, we direct that the Respondent “Y” should be written to inviting her to say whether she wishes to advance any argument as to whether there should or should not be a restricted reporting order.  If she has not indicated that she wishes to advance any such argument within fourteen days of the receipt of that letter then there will be a restricted reporting order which may be perfected at that date.  Until then it must be regarded as inchoate or, adopting the words from another jurisdiction, nisi.  If she does wish to advance oral arguments they can be heard at the start of the hearing before the Tribunal to avoid further cost and expense.